When the Supreme Court Fears Too Much Justice

>At first glance, the Walmart class action sex discrimination case argued earlier this week before the Supreme Court and the Court's 5-to-4 reversal of a multi-million dollar damage award to a man who was wrongly imprisoned because of gross prosecutorial misconduct don't seem to have much in common. But take a second look: Each case involves questions of corporate or governmental liability, respectively, for misconduct by individual employees; and, in each case, vindicating the alleged violations of rights could disrupt the status quo and provide remedies for systemic, institutionalized injustice. If the Orleans Parish district attorney's office were held liable for the knowing misconduct of its prosecutors in a capital case, then other government agencies might no longer enjoy relative immunity for the misconduct of their agents. If Walmart is exposed to a class action lawsuit charging systemic sex discrimination, then so could many other companies in which men are allegedly given preferential treatment over women.

Walmart v Dukes is, to be fair, more complicated legally and morally than Connick v Thompson, a case in which prosecutors admittedly violated an apparently innocent man's rights in order to convict him of a capital offense, for which he served 18 years under threat of execution. In Walmart, the Court is considering whether "hundreds of thousands of female employees" may be certified as a class for purposes of a sex discrimination suit. Plaintiffs are required to show "commonality" for class certification, and a central question before the Court involves company policy regarding the treatment of women and whether the plaintiffs were victims of institutionalized discrimination or discrete discriminatory acts by individual managers -- in Justice Roberts's words, "bad apples."

It's not an easy question, but the conservative majority seems likely to embrace the bad apples theory, in part, I suspect, because it would obviate even considering claims of systemic discrimination. New York Times reporter Adams Liptak quotes this telling exchange between Justice Alito and plaintiff's counsel's Joseph M. Sellers:

"So, you have the company that is absolutely typical of the entire American work force," Justice Alito said. "Then you would say every single company is in violation of Title VII of the Civil Rights Act?"

"That could very well be the case," Mr. Sellers said.

And that is a possibility weighing heavily against the plaintiffs. A majority of justices seem about as likely to expose "typical" American companies to class action discrimination claims as they are likely to seek employment at Walmart.

Bad-apples jurisprudence doomed John Thompson's case against the Orleans Parish district attorney, involving the admitted, intentional failure to provide the defense with exculpatory evidence (as constitutionally required by Brady v Maryland.) Here, as in the Walmart case, the Court considered whether a violation of rights should be attributed to office policy or the discrete acts of an employee. Writing for the majority and overturning the jury verdict, Justice Thomas blamed a "rogue prosecutor," giving little credence to the claim that Brady violations were common and predictable, attributable to the D.A.'s failure to train his prosecutors and his "deliberate indifference" to constitutional rights. Prosecutors don't need training, Thomas suggested, displaying remarkable detachment from reality, because they've obtained law degrees and passed their bar exams. But what's striking about this case, aside from the majority's apparent indifference to practical realities and the actual sufferings of an innocent man wrongfully sentenced to die, is its indifference to the facts of the case outlined by Justice Ginsburg's dissent.

Not one but five prosecutors were involved in suppressing exculpatory evidence in a fatal armed robbery case that was engineered to obtained a conviction against a man whom the prosecutors had good reason to believe was innocent: John Thompson and an alleged accomplice had been turned in by an associate seeking a reward. The initial description of the killer didn't fit Thompson but did fit his alleged accomplice, who became a star witness against him. Suppressing exculpatory evidence, prosecutors first obtained an armed robbery conviction against Thompson, which effectively precluded him from testifying in his own defense and impeaching the prosecution's witnesses at his subsequent murder trial.

And while the majority asserted that the prosecutors were generally aware of their responsibilities under Brady v Maryland, (and therefore didn't need training), Ginsburg pointed out that District Attorney Connick, "the office's sole policymaker" had a "flawed understanding of a prosecutor's Brady obligations." (Connick also acknowledged that he hadn't read law books or opinions since 1974 and that he had once been indicted for withholding evidence.) "The testimony of other leaders in the district attorney's office revealed similar misunderstandings ... (p)rosecutors confirmed that training in the district attorney's office, overall, was deficient." The facts in this case were damning, which is perhaps why the majority ignored them and why Justice Scalia, in concurrence, expressed disdain for the "dissent's lengthy excavation of the trial record."

Instead, Scalia worried that upholding the jury's award to John Thompson would expose municipalities to liability "in virtually every instance where a person has had his or her constitutional rights violated by a city employee." Imagine that--holding government agencies responsible for the misconduct of government employees and providing remedies for grievous violations of individual rights.

In defending government immunity from lawsuits, Scalia was citing a 1978 case, Monell v New York, which ruled that federal civil rights law does not hold localities responsible for the constitutional violations of their employees. In an interesting amicus brief, the Cato Institute and the Alliance Defense Fund argue that Monell should be overturned. Why should local governments not be held responsible for the wrongful acts of government agents, just as private corporations are responsible for the wrongful acts of employees? Indeed, shouldn't a government that supposedly serves the people in accordance with their constitutional rights be held to high standards of conduct, and how might those standards be enforced if governments aren't liable for ignoring them?

How much justice, at the price of how much disruption, is the Court willing to provide? You can find a depressing answer to that question in the 1986 case of McCleskey v Kemp, involving racial disparities in sentencing in capital cases. Warren McCleskey, a black man sentenced and subsequently executed for killing a white police officer, challenged Georgia's death penalty, demonstrating that it was applied disproportionately in cases involving white victims, according to a frequently cited study by David Baldus. The Court did not dispute this study but ruled against McCleskey anyway. Writing for the majority, Justice Powell explained that allegations of bias were not limited to capital cases or to claims of racial bias. "Thus if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty." As Justice Brennan observed, the Court displayed a "fear of too much justice." John Thompson would probably agree.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.